Prof. Edzard Schmidt-Jortzig, Chairman of the German Ethics Council (appointed by the Federal Parliament), a former federal justice minister, who also teaches law at the University of Kiel comments:
I find your „Notes for judges, guardians and psychiatrists“ extremely helpful…
Judges may only make a judgement on those who are unable to give informed consent. One must distinguish the following facts:
a) If there is no known advance directive and there is neither a privately named representative nor a legal guardian.
In this case, the presumed will must be determined and obviously it is the natural will not to be locked up because the person would otherwise have voluntarily entered into a psychiatric ward or would stay there. Physicians need to refute this (natural) will (which was strengthened by the legislature in as much as that an advance directive may actually be revoked) by proving a previously expressed desire to be locked up. This is actually only possible with a positive psychiatric advance directive, having been expressly approved in the presence of witnesses (if this is in writing, case b) applies).
b) There is an advance directive without guardians or privately named representatives.
In this case, the text in the advance directive must apply. Interpretations are only possible with contradictory instructions in the advance directive, or if the advance directive – as opposed to a PatVerfü is very general and vague.
c) There is a guardian or a privately named representative and there is no known advance directive.
In this case, the guardian or named representative must determine the presumed will, see a), and make this known to the judge in case the doctor says he knows the will of the person concerned better and objects. The following must always be observed: the will of a person overrides his well-being and/or is determined by the subjective will of the person concerned and in that respect these are identical. This was decided by the legislature on 18/6/2009.
d) There is an advance directive and a guardian or privately named representative.
In this case, what stands in the advance directive must be the determining factor. Interpretations are possible only with contradictory statements in the advance directive or if the advance directive – as opposed to a PatVerfü – is very general and vague. In particular, there shall be no psychiatric diagnosis without the informed consent in an advance instruction, the requirement for informed consent being explicitly stated by the legislature on 18/6/2009:
§ 1901a (1): … When an adult, who is able to consent, puts in writing that, in the event of his inability to consent whether he approves or prohibits certain therapeutic or medical examinations of his state of health …
A judge must therefore:
1) determine whether there is an incapacity to give consent.
This requires a psychiatric assessment, which would violate a PatVerfü and which is therefore impossible! On the basis of his own experience, a judge can only determine an incapacity to give consent of a person in a coma. This means a PatVerfü is a primary protection from unwanted psychiatric measures!
2) ascertaining if there is a coma case.
In this case, the court must first check the register of the federal chamber of notaries for advance directives and representanion agreements. For if there is a registered privately named representative, then the fact itself and the name of the representative must be immediately reported to the doctor so that he contacts the representative and learns the likely wishes the patient had documented in his advance directive in order to be able to act on it – preferably by the advance directive being quickly faxed to the hospital. Any judge´s decision is most probably then not necessary – the „privatization“ of a medical decision intended by the legislature takes place.
3) determine whether there is an inability to give consent and whether there is no privately named representative or legal guardian.
If so, then the doctor or the hospital is asked whether the patient presented an advance directive, or if he had an advance directive with him.
If so, see b).
If not, in this case, with a coma patient maximum medical treatment must be the presumed will. Excluded, however, is psychiatric treatment against his will, if no previous statement of intent for this exists, see a).
4) determine whether there is a PatVerfü.
If so, it is very simple for the judge. As soon as a PatVerfü is presented, the procedure can immediately be stopped.
(Therefore this information for everyone: the best is to always have an original PatVerfü with you because then doctors will know even before a judge „what’s going on“ and that makes their decision easy 🙂 )
Notes for legal guardians
Since 1/9/2009 the new legislation on advance directives is in force. The legislature has by law made a person’s will or their informed consent to medical treatment as the relevant and decisive criterion for this. This becomes clear in the wording of the bill:
§ 1901a Advance directives
(2) If there is no advance directive or should the specifications of the advance directive not be in accordance with the current living and treatment situation, the guardian must find out the wishes for treatment or the presumed intention of the person under guardianship to determine and decide on that basis if he consents to or prohibits a medical action under paragraph 1. The presumed will is to be determined on the basis of actual evidence. Considerations include particular previous oral or written statements, ethical or religious beliefs and other personal values of the person under guardianship.
A court-appointed guardian thereby has the duty to ascertain the wishes of a person under care or to determine his presumed will on the basis of concrete evidence if there is not already e.g. a PatVerfü, a psychiatric will, or an advance directive with similar goals. A decision without a thorough investigation would be negligent (if not grossly negligent) if however, on the basis of a lack of knowledge, no intent can be imputed. Confinement in a psychiatric hospital, or even forced treatment due to a negligent investigation or even against a better knowledge may be legally punished if the person concerned should prosecute. Since the guardian now more than ever is in charge of the process, he also has a special responsibility for careful investigation.
If a guardian should ever learn of the existence of an advance directive, whether it had been declared in writing or orally in the presence of witnesses, in which psychiatric forced incarceration, coercive treatment or even just a psychiatric diagnosis without mutual agreement has been prohibited, the new law now obliges him to do everything in his power so that these unwanted medical interventions are not undertaken. Only if he has received an up to date signed statement from the person concerned that there is no such oral or written order, or one that might ever have been made is now definitely no longer valid, is forced incarceration a possible option at all, as the current will of the person concerned is not to be locked up because this person would otherwise voluntarily enter or stay in a psychiatric ward.
A person can only be detained or even treated against his current will, if earlier such treatment was explicitly approved and such an approval has also never been revoked (see e.g. positive psychiatric advance directive), or it is documented in writing that he/she has never had an advance directive and in addition the person concerned has committed himself to informing the guardian accordingly about issuing a new advance directive.
Without such a written statement about the nonexistence of an advance directive, a guardian is always in danger, perhaps through an oversight not to have noticed that the person he is the guardian of once said that he had an advance directive. If the person in guardianship has a witness for this statement, the guardian could quickly have a criminal and also a civil law problem due to compensation claims for pain and suffering of the person under guardianship. This would be the case if the guardian should apply for forced incarceration or even coercive treatment in the court, simply because a doctor sees a need for treatment and maybe even wants to prevail with this by an alleged „danger to oneself or others“.
For the prevention of endangerment, it is the police who is in charge, resticted by the law to criminal investigations, not a preventive medical oracle.
For judging a situation, it is therefore NOT important, what doctors think is advisable and necessary, or what prognosis they make, rather the current will of the person under guardianship has priority. Only when the person under guardianship has been judged by a court as having an „inability of informed consent due to illness“ must his previous wishes or interdictions be determined and only then, if on the basis of concrete evidence his informed consent to use coercion can be documented, a guardian can consider a forced incarceration because only then will a medical judgement come into play.
Notes for psychiatrists
On 18/6/09, the legislature made a far-reaching and radical decision with regard to psychiatry because, by this new law, the will of the patient is given priority over his well-being, which reduces psychiatric paternalism to a residual category. This is done by the fact that now the well-being of adults is defined subjectively by themselves, in accordance with their wishes and volition, even if it can only be speculated about his will. Up till now, the determination of well-being was left to expert opinions by doctors, whose judgement was almost always confirmed by the judges. For legitimation the decision should appear as „objective“ or „rational“, but in fact this only documents a governing power structure: psychiatric paternalism.
It becomes a residual category because only if it is established that:
a) a person has no PatVerfü, and
b) knowingly and willfully approved psychiatric diagnosing, namely after having been extensively informed about its potential effects, consequences and side effects and any potential further uses of this diagnosis,
may a psychiatric diagnosis be made at all.
The legislature has specially also included this first step of medical procedures in the new Civil Code § 1901a and placed under the condition of the approval of the person concerned that:
(1 When an adult, who is able to consent, puts in writing that, in the event of his inability to consent whether he approves or prohibits certain therapeutic or medical examinations of his state of health…
For the very reason that for judges, the law is a guideline and yardstick for the decision, courts can only then order the making of a psychiatric diagnosis by force, when in doing so the notes for judges [see here] are observed *. Psychiatric diagnoses without informed consent of the person concerned can therefore only become legal by his prior approval of this first medical step being documented in writing or proven by witnesses. Illegal investigations are a violation of Personal Rights and can lead to serious penalties – for example: illegally made HIV or genetic tests. They are incompatible with medical ethics.
We make the following recommendations although we are convinced that there is no such thing as a mental illness and therefore nothing can be psychiatrically diagnosed anyway. But because doctors (so far!) do not share this premise, the following advice is made assuming the fiction that it does exist and psychiatric specialists could offer help.
The violence inherent in all psychiatric measures, either as direct coercion, or only as implicit, structural threat of imprisonment in a „locked ward“ and the coercive treatment in them, has to be replaced by persuasion:
The patient must be convinced by factual proof that a psychiatrist´s suggestions in no case are followed by any non consensual act by him. The informed consent of the patient should be documented each time anew e.g. by his signature. The patient´s right to say „no“ must be valid not only at any time, but should also be believed and felt by him to be the case. A tool of persuasion could be e.g. the offer of the physician to document his rigorous and strict observance of medical confidentiality, especially with regard to all state institutions and courts, by a written confirmation given to the patient. Of course any expert opinion delivered to a court for a forced incarceration of a patient according to any mental health act is completely incompatible with such a confirmation and should even be unthinkable.
It is very convincing for the patient if he is repeatedly offered the option to also say „no“ and that he can leave whenever he wants, and other outpatient aid is offered to him.
Given that the history of psychiatry is a history of the cruel use of violence and the most brutal of human rights violations, only in a long-lasting and irreversible process of absolute non-violence can trust in psychiatric specialists develop at all. The alternative is the complete abolition of this profession.
* If a patient remains persistently silent, (illegal) torture methods would have to be used to make the patient speak. This is why the best advice to a person in this situation is stony silence with regard to any psychiatrist.